In a case where a property exceeding an inherent share of inheritance due to a division of consultation on inherited property is acquired, whether such excess shall be deemed a donation from other co-inheritors (negative)

Even though some of the co-inheritors acquire property exceeding their own share of inheritance by mutual agreement as to inherited property, it shall be considered as having received property from the inheritee retroactively at the time of the commencement of inheritance, and it shall not be deemed as having received a donation from other co-inheritors. Article 31(3) of the Inheritance Tax and Gift Tax Act provides that "after the commencement of inheritance becomes final and conclusive by registration, registration, transfer of title, etc. (hereinafter referred to as "registration, etc.") on inherited property, the value of property acquired by a specific inheritor in excess of the original share of inheritance by mutual agreement among co-inheritors shall include the property donated from the inheritor whose share of inheritance has been reduced by the division, as to the inherited property, after the division has become final and conclusive by mutual agreement among co-inheritors."

Article 31(3) of the Inheritance Tax and Gift Tax Act; Articles 1013 and 1015 of the Civil Act

Supreme Court Decision 91Nu729 delivered on March 27, 1992 (Gong1992, 1454), Supreme Court Decision 93Nu10217 delivered on September 14, 1993 (Gong1993Ha, 2831), Supreme Court Decision 93Nu19535 delivered on March 22, 1994 (Gong194Sang, 1360), Supreme Court Decision 95Nu15087 delivered on February 9, 1996 (Gong196Sang, 101)

Plaintiff (Attorney Cho Sang-hee, Counsel for the plaintiff-appellant)

The director of the tax office.

Seoul High Court Decision 2000Nu8808 delivered on December 15, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Even though some of the co-inheritors acquire the property exceeding their own share of inheritance by mutual agreement as to the inherited property, it shall be deemed that it was inherited from the inheritee retroactively at the time of the commencement of inheritance, and it shall not be deemed that it was donated from other co-inheritors (see Supreme Court Decision 95Nu15087, Feb. 9, 1996). Article 31(3) of the Inheritance Tax and Gift Tax Act (hereinafter referred to as the "Act") provides that "after the commencement of inheritance becomes final and conclusive by the registration, registration, transfer of title, etc. (hereinafter referred to as "registration, etc.") on the inherited property, and the value of the property acquired by a specific inheritor in excess of the original share of inheritance by mutual agreement among co-inheritors shall include the property donated from the inheritor whose share of inheritance has been reduced by the division, which is determined by separate agreement among the inheritors after the registration, etc. of each inheritor becomes final and conclusive."

In full view of his adopted evidence, the court below acknowledged the facts as stated in its holding, and determined that the portion in excess cannot be deemed to have been donated from other inheritors, even if the portion in excess was registered in excess of the plaintiff's statutory share in inherited property in excess of the inherited property in excess of the plaintiff's statutory share in inherited property, since it was unilaterally made by the non-party 1, the head of the decedent and the South-North of the deceased, on the part of the dispute over the division of inherited property and the agreement between the inheritors regarding the division of inherited property, prior to or against the agreement between the inheritors regarding the division.

Compared with the above legal principles and the evidence in the relevant statutes and records, the above determination of the court below is just and there is no error in the misapprehension of legal principles as to the scope of donated property or incomplete hearing.

We cannot accept the Defendant’s argument in the grounds of appeal.

Therefore, the defendant's appeal is dismissed, and all costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)